I often hear litigators and clients complaining that the process of arbitration is flawed and does not deliver on its aspirations to provide a cheaper, quicker alternative to litigation in court. My response is that they are not really upset with the process of arbitration or mediation, but with the person who drafted the Alternative Dispute Resolution clause in their contract. The Arbitrator must administer the arbitration proceed pursuant to how the parties wrote the agreement. Therefore, as I wrote in this post, if you want a better process, write a better contract. I have endeavored to provide both my preferred standard ADR clause (with explanations), but also some alternative model arbitration, mediation, and ADR clauses from other trusted sources. The drafter should determine the process which will best benefit each client and draft the clause accordingly.

The italicized language below explains the rationale behind clauses and why one might choose that clause over another alternative.[1](more…)

Las Vegas: James Kohl and Jay Young, of Howard & Howard in Las Vegas, have been reappointed Settlement Judges by the Nevada Supreme Court for a second three-year term.

The announcement was made by Nevada Supreme Court Justice Ron Parraguirre.

The Nevada Supreme Court has mandated that certain matters on appeal participate in an Alternative Dispute Resolution (ADR) program to mediate disputes before an appeal is heard.

The Settlement Judges, who serve as impartial third parties, don’t rule on the cases they hear. Instead, they work with the parties in communicating their interests to promote a mutually acceptable resolution to the dispute.

According to the Court, its Settlement Judges are required to have a high level of training and experience as professional mediators. Over half of the cases assigned to the ADR program settle with the assistance of a Settlement Judge.

Kohl, a partner at Howard & Howard, has been an arbitrator and mediator for the State Bar of Nevada Fee Dispute Committee and an arbitrator for the Nevada Court’s Annexed Arbitration Program. In addition, he acts as a private mediator.

Recognized by his peers as an outstanding attorney, Kohl is AV-rated by Martindale-Hubbell. He has also been named to the Nevada Business Top 100 Lawyers and to Mountain State Super Lawyers.

Young, also a partner with the firm, is a national panelist with the American Arbitration Association, an arbitrator/mediator with Advance Resolution Management and an arbitrator with the Better Business Bureau.

In addition, Young is AV-rated by Martindale-Hubbell and has been recognized by Mountain States Super Lawyers, Best Lawyers in America, Nevada Business magazine Legal Elite and Vegas, Inc. Top Lawyers.

About Howard & Howard

Founded in 1869, Howard & Howard is a full-service law firm with a national and international practice that provides legal services to businesses and business owners. The firm has offices in Michigan (Ann Arbor and Royal Oak); Illinois (Chicago and Peoria); Las Vegas, Nevada; and Los Angeles, California. Howard & Howard’s major areas of practice include: bankruptcy and creditors’ rights; business and corporate; commercial litigation; employee benefits; environmental; estate planning; franchising; intellectual property; labor, employment and immigration; mergers and acquisitions; real estate; securities; and tax. Our distinguished backgrounds provide us with a solid understanding of the industries we serve, including, automotive and industrial; cannabis; commodity futures; construction; energy and utilities; financial services; gaming; healthcare; and hospitality. For more information, please visit the firm’s website at www.howardandhoward.com.

Mediation: Seven Things You Should Discuss With Your Client Before Mediation

Readiness Checklist for Mediation

Counsel should consider discussing the matters below with their client prior to mediating a litigated matter. Doing so will better prepare the client and counsel for the mediation itself and will improve the opportunity for resolution at mediation. For a printer-friendly version of this article, click here.

Obtain client suggestions for non-monetary solutions, such as future business or payment in kind that may be desirable

Decide whether an apology to or from the client might be appropriate

Selecting a Mediator

Discuss the desired education, experience, and background of your mediator. Is subject matter expertise really necessary, or are mediator skills more important?

Describe how the mediator selection process works (if specified by contract or otherwise)

Determine whether an evaluative or facilitative mediator would be best for this case

Explain How the Status of the Dispute Influences the Mediation Process

Has suit/arbitration been filed?

Is trial/arbitration looming?

How long will trial/arbitration take to a final resolution?

Have there been any continuances?

Is the tribunal likely to grant a request for a continuance from the other side, further delaying the matter?

Are there pending dispositive motions before the court/arbitrator which create some risk?

How should that risk inform the client’s decision-making?

Discuss your honest assessment of chances of success on the pending motion

Whether mediation is more likely to be successful with the risk hanging over the parties’ heads (creating uncertainty) or after a decision is made (may be too late or the client could spend more money for the court to “punt” on the matter until trial).

Has the judge/arbitrator made any preliminary decision in the dispute?

Has the judge/arbitrator indicated an early assessment of either party or their case?

Either explicitly or implicitly?

What is the status of discovery?

How much is completed?

Are party depositions completed?

Discuss your honest assessment of the other party as a witness and likely impact they will have as a witness on decision by judge/jury;

Discuss your honest assessment of your client as a witness and likely impact they will have as a witness on decision by judge/jury;

What discovery needs to be completed?

What is the estimated cost of completing discovery?

Are expert witnesses needed?

What is the estimated cost of the expert witness through the close of discovery?

What is the estimated cost of the expert witness through the end of trial?

Regarding previous settlement discussions:

What are the impediments to settlement presently?

How can the client and counsel best seek the assistance of the mediator to overcome those impediments?

The Impact of Opposing Counsel on the Case and the Mediation

Discuss how opposing counsel presents in front of a judge/arbitrator/jury and the likely impact it may have on a decision

Discuss how a mediator may assist the parties in dealing with opposing counsel

Discuss the opposing counsel’s likely approach to the mediation

Settlement Authority at Mediation

Determine your recommendation for a favorable settlement range (please do not discuss a client’s “bottom line” unless you want the client to “anchor” on that number and exhibit inflexibility to move beyond it at mediation)

Discuss the pros and cons of settlement at certain dollar ranges

What is the likely result for the client on its best day should the matter go to trial?

What is the likely result for the client on its worst day should the matter go to trial?

What is the likely result for the client on an average day should the matter go to trial?

Anticipated Costs of Litigation or Arbitration

What is the likely cost to litigate to resolution (deposition costs, expert fees, attorney fees, etc?)

The pre-trial costs

The cost to try the case

How much has the client spent to date on the litigation

Is there a right to appeal an ultimate resolution by the court/arbitrator?

Whether an appeal is available only at the end of the case

What is the likelihood of either party to appeal should they lose at trial?

An estimated of the cost to appeal

An estimated time to complete appeal

Whether the resolution of the appeal is likely to result in re-trying the matter or a portion of it

Cost and Fee-shifting:

Are the parties subject to a fee-shifting contractual provision, statute, or rule making an award of fees likely or possible

Are litigation costs are recoverable from the other side

The extent to which expert fees are recoverable (REMINDER: NRS 18.005 allows only “$1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”)

How long it may take for the court or arbitrator to resolve the case

What Are the Chances of Success at Trial?

What is the attorney’s honest assessment of the strength of the plaintiff’s claim, considering both liability and damages?

If you obtain a judgment, does the defendant have assets available for collection?

What is the attorney’s honest assessment of the strength of the opposing case?

Abraham Lincoln said: “Discourage Litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, and expenses, and waste of time.”

So, your attorney has asked if you will agree to mediate your legal dispute. Do you understand what that means? This articles below explain mediation and what you can expect from the process and from your mediator.

Everything I have covered in this article is designed to assist you in trying to resolve your dispute. The more you prepare, the more likely you are to reach a settlement. Perhaps the most important factor in you being able to settle your case is having a realistic expectation regarding the value of your case and what is means to really compromise. If you think you could get $1,000,000 from a jury on your very best day, do not expect the other side to be willing to pay you that $1,000,000, as they will be looking at how little they could pay you if the jury believes them more than it believes you. If you are an injured party, you may likely feel that no amount of money can really make the past go away. Likewise, if you are defending that case, do not expect to walk away paying the amount you think you would at trial if you did everything right and the jury agreed with all of your analysis and presentation. The sweet spot for settlement is somewhere between those two extremes.

Ultimately, if your case is not settled at mediation, a judge or jury will decide the case value. Jurors are strangers to your case and may have differing beliefs and attitudes toward you. Jurors are often suspicious of people who bring lawsuits and of their attorneys. They also tend to wonder why they shouldn’t get the $1,000,000 that you are seeking and sometimes resent the person asking for money. This is especially true where there are minimal property damages and soft tissue injuries that cannot be verified objectively or where damages in a business matter are caused to a new business and are hard to quantify. On the other hand, juries tends to be unforgiving if they feel a plaintiff has been treated unfairly or if they feel the acts of the defendant are particularly harmful that they need to be punished. Further, some jurors have religious or moral objections to filing a lawsuit and therefore hold some bias. Some jurors, for reasons they may not even understand, will simply like one party more than the other party. You should come prepared to discuss a realist case value in light of all of these risks.

No two mediations are alike, but you should be prepared for a long, sometimes tedious, tiresome, trying, and emotional process. The more complex the problem, the more likely that the mediation will take some time to come to a conclusion. I have spent as little as an hour and as long as 40 hours (over multiple days of course) mediating a single matter. Most business mediations take at least a half a day, but complex matters can go a full day or longer. Bring any item with you that you need to be comfortable. Some people bring a good book or a hobby to work on during down time when the mediator is in a separate session with the other party.

A separate session is sometimes referred to as a caucus or a private session. It is simply a private meeting between a mediator and one party (with that party’s counsel). I place the parties in separate rooms, and far enough apart that they won’t run into each other easily and uncomfortably in the hall, and will not be able to hear one another’s separate session. I then meet separately with each party. These sessions can be as short as a few minutes and as long as necessary to make progress.

The time spent in separate sessions will certainly not be equal between the parties, but you should not read any significance into that fact. Understand that each person processes information, offers, and emotions differently, so a mediator may have to spend more time with one party than another. It does not mean that I am in the other room “drinking the kool-aid” being served by the other side. Rather, think of it as me taking the amount of time I believe is necessary to move that party closer to a resolution. During a separate session, a mediator may simply gather information before even asking either party to make any offer. Thereafter, a mediator may engage in shuttle diplomacy, moving from one room to another, delivering information, exploring options, and making offers and counteroffers.

First, I prefer to have a pre-mediation discussion by telephone with counsel a few days before we meet. I find that these conversations give me a flavor for the dispute that I cannot always get from the written briefs, and help me to jumpstart the actual mediation by getting to know the attorneys and their issues better. Attorneys often choose to use this phone call as an opportunity to deliver an ”opening statement,” laying out their client’s case in a safe environment where they are not likely to enflame emotions as sometimes happens when opening statements are given with litigants present. I appreciated the candid exchange, as well as the advocacy in an environment that is not likely to set negotiations back because someone is offended.

Second, I like to start the day with a short joint session. In the joint session, all participants will be introduced and will sign a confidentiality agreement before proceeding. Next, I will take a moment to introduce myself and my background as a professional neutral, and outline the process of holding separate sessions. I will ask for a commitment to the process of the mediation. You should be prepared to commit to making a good faith effort to settle your differences at mediation.

Yes, mediation proceedings are confidential. There are several aspects of mediation confidentiality that are explained in greater detail below, which you should understand: 1) confidential submissions to the mediator; 2) confidentiality of the settlement itself; 3) admissibility of the negotiations should the matter not settle; and 4) the obligation of the mediator keep confidential, the information shared with him or her by a party.

As I indicated above, counsel may submit truly confidential matters to me without sharing it with the other side. I will absolutely hold those in confidence unless you later authorize me to share that information with someone. The settlement reached at a mediation is not necessarily confidential unless the parties make confidentiality a term of the agreement. The parties will have to determine whether they should allow one or both parties to be able to speak openly about the fact that the case settled, or about the amount of the settlement.

Things that happen and information exchanged at mediation cannot be used against a party to that litigation or in other court proceedings so long as the information is not discoverable by other means. This point is so important that it is written into the law. First, an offer to compromise one’s position by way of negotiation “is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.” Nevada Revised Statutes 48.105. Federal Rule of Evidence, Rule 408 provides the same protection for matters in Federal Court. Second, a mediator in Nevada cannot be forced by any court to disclose any matter discussed during mediation proceedings. Nevada Revised Statutes 48.109(3). Finally, in order to encourage parties to be open, honest, and to achieve a mediated resolution, our legislature has declared that “no admission, representation or statement made during the [mediation] session, not otherwise discoverable or obtainable, is admissible as evidence or subject to discovery.” Nevada Revised Statute 48.109(2).

Mediators may not share confidential information you provide to him or her to your opponent. Some mediators will tell you they hold everything you tell them in confidence and only divulge what you specifically tell them is not confidential. Other mediators (me included) feel that sharing of information is so essential to the process that nothing is treated as confidential unless they are specifically instructed that the matter is confidential. I will assume you want me to be able to share information if and when I feel it may assist with settlement unless you tell me it is confidential. There is no right or wrong approach, but you should make sure you understand your mediator’s philosophy before you share sensitive information. Finally, communications between you and your counsel are attorney-client privileged communications protected by law.

All parties directly involved in the dispute should attend the mediation. You and your attorney, as well as the other party and their counsel need to appear. Anyone who would be responsible to pay or to approve the amount paid or received should be in attendance or, at a minimum, be available by telephone. If an insurance company will be paying for any settlement, a representative of that insurance company who has full settlement authority should be there in person. If a company is a party to the litigation, an individual with final settlement authority should be present. My preference is that parties not participate via telephone, as it is easier to be dispassionate and disassociated with the process. Anecdotal evidence suggests that having a party appear by telephone increases the chances that the mediation fails to end in a settlement, so I prefer to have all decision makers present for my mediations.

In litigation, your attorney does most of the heavy lifting, and as a party, you are mostly watching the presentation. Much of that presentation, if not all, focuses on the past. In mediation, your attorney will still be an important advocate for your cause and will certainly be a very important advisor to you, but you play a more central role. I will sometimes speak with your attorney and I will sometimes speak directly to you in order to help find the best way forward. I will have learned about the past from your counsel’s brief and will look forward to understanding its impact on you when we meet. Please be engaged in the process and share with me your feelings both about what occurred as well as what you would like to see for the future. Even though I have been involved in thousands of disputes, I guarantee that I have never had one “just” like yours. Therefore, I need your help to understand your unique situation.

As a mediator, I believe my first role is to understand the dispute between the parties. The parties to the suit have the most information about the issues that they currently face. To help them reach a resolution, I need to understand the genesis of the dispute through its current status. Therefore, before the parties and their counsel meet with me, I ask each of them to provide me with a “mediation brief,” which is essentially a summary of your dispute. Your brief should not be a trial advocacy brief, or contain bundles of pleadings and deposition transcripts unless those are absolutely necessary to educate me. You should simply provide me general information regarding the types of claims filed, as well as the strengths and weaknesses of the evidence regarding those claims. Briefs should be civil and professional in tone, without personal attacks. The goal your brief should be to inform me, not to inflame your opponent.

A good brief will contain:

A factual summary, including any factual disputes;

A short statement outlining the type of work/business of every party, if relevant;

A chronology of events, if relevant;

A glossary of technical terms, if relevant;

A list of the important parties and their relation to the dispute;

An outline of the legal issues;

A history of the settlement negotiations between the parties, if any (consider submitting this information in a separate confidential submission);

A candid evaluation of the relative strengths and weaknesses of each party’s case;

A procedural history of the litigation, and any upcoming deadlines, including a trial date;

A fair settlement proposal to which you would be willing to agree (consider submitting this information in a separate confidential submission);

Any non-monetary settlement terms you would like to explore (consider submitting this information in a separate confidential submission); and

Any terms or conditions that the party or parties believe should be included in a settlement agreement.

Second, attorneys sometimes want all mediation briefs to be confidential. There are many times when parties could have saved hours of negotiations during the mediation session had counsel shared their briefs with each other. If the other side has an over-inflated view of their case, sharing that information early will assist in settling the matter and advance your cause.

While it is not recommended to disclose truly confidential information in your brief, sharing your brief is not an accommodation to other side. Retired judge and mediator Alexander H. Williams III is fond of pointing out that a shared brief is an enhancement of your presentation as well as your influence on the mediation. And even if the other side decides not to share its brief, and therefore chooses not to strengthen its presentation, that does not mean you should refuse to strengthen yours.

Third, I will not decide who wins your dispute. I do not “take sides”— I am not a judge, jury, or an advocate. My job is to help each side come to an agreement. You are the one who decides if you are willing to accept any offer made by the other party. I may provide the parties with some food for thought and even play devil’s advocate at times to challenge how each party sees both the dispute as well as the way forward. At times, I may act as an “agent of reality,” telling each party things that they don’t want to hear. I do so that the parties can see things that they may not have considered before, but you will be the one who makes the final decision whether you agree to a settlement. Most parties to mediation at one time or another express unrealistic goals or settlement offers. Rest assured that I will discuss “reality” with both side of the dispute.

Fourth, I will try to help the parties find common ground. As I do so, my goal is to guide the process in a fair fashion. Sometimes that means discussing money being paid from one side to another. Other times that will entail crafting a business relationship going forward that benefits both parties more than litigation does.

Finally, I will often be asked to “carry water” for a party—that is, a party will ask that I deliver a message to the other party. These messages could be positive in nature—a willingness to express a sincere apology, or a more negative approach—if you don’t accept our offer, we intend to file a motion for fees, etc.

The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result. Every experienced litigator can point to cases they won when they didn’t think they had a chance winning. They can also point to times when if there was any justice, they would have won, but lost. There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator. A mediated result gives you certainty without the risk of litigation.

The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision. The study surveyed thousands of cases in California and New York over a five year period. It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time. In only 15% of the cases did both sides obtain a better result at trial.

All is not good news for defendants, however. Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them. Defendants who fared worse at trial than the last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand. On the other hand, plaintiffs who fared worse than the last offer, received on average $43,000 less than the last offer given before trial. Some studies suggest that 95% or more of lawsuits settle rather than go to trial. Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later? Doing so will save time, aggravation, stress, and money. That said, mediation will not be an easy process. At times, you may feel uncomfortable, pressured, and perhaps even emotional. If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter.

There may come a time during mediation when you may feel like giving up and you might feel like settlement is impossible. It is likely that in order to settle, both parties will be urged to step beyond the original “bottom line” limit they determined for themselves before the process started, in order to make a deal. Once the parties have come this close to a settlement, the last thing they should do is to give up. The easy answer will be to walk out the door in frustration. But remember what awaits you if you choose to leave: more attorney fees, stress, frustration, and an uncertain result through litigation. If you are inclined to say, “I offered my last dollar and they rejected it,” I would also urge you to avoid drawing a line in the sand. Instead, explore if there is something of non-monetary value that you can give or get that might make the deal more palatable. If not, I would recommend that instead of walking out the door, you tell the mediator that you are ready to quit, and allow the mediator a chance to give you a reason to stay. If you give the process a chance, you may walk away with a settlement you can live with, rather than an uncertain future where the decision will be made by someone else.

Litigation is about proving your case and having a judge or an arbitrator declare a winner; one party wins and another loses. In contrast, at mediation the law and your likelihood of success is a very important aspect of your case, but it is not the only factor. Mediation allows other factors to be considered and developed without being limited to just what the law might provide if everything at trial goes the way that you hope it will. Mediation is designed to try to find a resolution that is a win-win. Unless parties insist, I normally do not normally suggest that counsel give an opening statement at mediation. Doing so is, more often than not, counterproductive as they tend to devolve into a chest pounding session about who will win the litigation.

In litigation, one often listens to the other side, not for understanding and a search for common ground, but for the exposure of inconsistencies, weaknesses, and opportunities to score points. Because of this adversarial process, litigants almost always have an exaggerated view of the strength of their own case and the weakness of the other side, which means that you probably have an exaggerated view of your case, just as the other side does. Litigants tend to experience what psychologists call “confirmation bias” — the tendency to interpret new evidence and information as confirmation of one’s existing beliefs and theories. I therefore encourage you to be open to a conversation that requires parties to listen as well as to speak. Be honest about your “bad facts”. All cases have bad facts and neither yours nor your opponent’s case is an exception. Discuss your bad facts with your counsel before the mediation so that you will be prepared to understand how they motivate the other side and/or how they should influence you.

Lastly, in litigation, someone else determines your future. It might be a judge, a jury, or an arbitrator, but someone else will decide who is right and who is wrong. You will lose all control over the outcome. Conversely, by mediating your dispute, you can maintain control over the outcome.

Simply put, mediation is a process where a person called a mediator helps people resolve a dispute in a non-confrontational setting. It is more akin to marriage counseling than litigation. The mediator will not be deciding any outcome, but will try to get the parties to come to an agreement with which they can both live. According to the Nevada Rules Governing Alternative Dispute Resolution, Rule 1(B), the mediator:

acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.

Since no two disputes are alike, no two solutions will be the same. The process of how mediation proceeds will therefore depend largely on the needs of those involved. I will attempt to illustrate some of the possible ways a mediation might proceed.

Abraham Lincoln said: “Discourage Litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, and expenses, and waste of time.”

So, your attorney has asked if you will agree to mediate your legal dispute. Do you understand what that means? This article explains mediation and what you can expect from the process and from your mediator.

What Is Mediation?

Simply put, mediation is a process where a person called a mediator helps people resolve a dispute in a non-confrontational setting. It is more akin to marriage counseling than litigation. The mediator will not be deciding any outcome, but will try to get the parties to come to an agreement with which they can both live. According to the Nevada Rules Governing Alternative Dispute Resolution, Rule 1(B), the mediator:

acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.

Since no two disputes are alike, no two solutions will be the same. The process of how mediation proceeds will therefore depend largely on the needs of those involved. I will attempt to illustrate some of the possible ways a mediation might proceed.

How Does Mediation Compare to Litigation?

Litigation is about proving your case and having a judge or an arbitrator declare a winner; one party wins and another loses. In contrast, at mediation the law and your likelihood of success is a very important aspect of your case, but it is not the only factor. Mediation allows other factors to be considered and developed without being limited to just what the law might provide if everything at trial goes the way that you hope it will. Mediation is designed to try to find a resolution that is a win-win. Unless parties insist, I normally do not normally suggest that counsel give an opening statement at mediation. Doing so is, more often than not, counterproductive as they tend to devolve into a chest pounding session about who will win the litigation.

In litigation, one often listens to the other side, not for understanding and a search for common ground, but for the exposure of inconsistencies, weaknesses, and opportunities to score points. Because of this adversarial process, litigants almost always have an exaggerated view of the strength of their own case and the weakness of the other side, which means that you probably have an exaggerated view of your case, just as the other side does. Litigants tend to experience what psychologists call “confirmation bias” — the tendency to interpret new evidence and information as confirmation of one’s existing beliefs and theories. I therefore encourage you to be open to a conversation that requires parties to listen as well as to speak. Be honest about your “bad facts”. All cases have bad facts and neither yours nor your opponent’s case is an exception. Discuss your bad facts with your counsel before the mediation so that you will be prepared to understand how they motivate the other side and/or how they should influence you.

Lastly, in litigation, someone else determines your future. It might be a judge, a jury, or an arbitrator, but someone else will decide who is right and who is wrong. You will lose all control over the outcome. Conversely, by mediating your dispute, you can maintain control over the outcome.

Why Mediate?

The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result. Every experienced litigator can point to cases they won when they didn’t think they had a chance winning. They can also point to times when if there was any justice, they would have won, but lost. There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator. A mediated result gives you certainty without the risk of litigation.

The Randall Kiser Study, released in the Journal of Empirical Legal Studies, found that parties who reject the last and best offer at mediation overwhelmingly regret the decision. The study surveyed thousands of cases in California and New York over a five year period. It found that plaintiffs who rejected the last settlement offer and proceeded to trial do worse a whopping 61% of the time, while defendants did worse than their last offer 24% of the time. In only 15% of the cases did both sides obtain a better result at trial.

All is not good news for defendants, however. Although they seem to do better at predicting outcomes, the 24% of the time they are wrong ends up being much more costly to them. Defendants who fared worse at trial than the last demand, ended up with a verdict that was on average $1.1 Million more than the Plaintiff’s last demand. On the other hand, plaintiffs who fared worse than the last offer, received on average $43,000 less than the last offer given before trial. Some studies suggest that 95% or more of lawsuits settle rather than go to trial. Assuming that is true, your case seems destined to settle; therefore, why not resolve it now rather than later? Doing so will save time, aggravation, stress, and money. That said, mediation will not be an easy process. At times, you may feel uncomfortable, pressured, and perhaps even emotional. If the process were easy, the parties wouldn’t need a mediator’s assistance to settle the matter.

There may come a time during mediation when you may feel like giving up and you might feel like settlement is impossible. It is likely that in order to settle, both parties will be urged to step beyond the original “bottom line” limit they determined for themselves before the process started, in order to make a deal. Once the parties have come this close to a settlement, the last thing they should do is to give up. The easy answer will be to walk out the door in frustration. But remember what awaits you if you choose to leave: more attorney fees, stress, frustration, and an uncertain result through litigation. If you are inclined to say, “I offered my last dollar and they rejected it,” I would also urge you to avoid drawing a line in the sand. Instead, explore if there is something of non-monetary value that you can give or get that might make the deal more palatable. If not, I would recommend that instead of walking out the door, you tell the mediator that you are ready to quit, and allow the mediator a chance to give you a reason to stay. If you give the process a chance, you may walk away with a settlement you can live with, rather than an uncertain future where the decision will be made by someone else.

What is the Role of the Mediator?

As a mediator, I believe my first role is to understand the dispute between the parties. The parties to the suit have the most information about the issues that they currently face. To help them reach a resolution, I need to understand the genesis of the dispute through its current status. Therefore, before the parties and their counsel meet with me, I ask each of them to provide me with a “mediation brief,” which is essentially a summary of your dispute. Your brief should not be a trial advocacy brief, or contain bundles of pleadings and deposition transcripts unless those are absolutely necessary to educate me. You should simply provide me general information regarding the types of claims filed, as well as the strengths and weaknesses of the evidence regarding those claims. Briefs should be civil and professional in tone, without personal attacks. The goal your brief should be to inform me, not to inflame your opponent.

A good brief will contain:

A factual summary, including any factual disputes;

A short statement outlining the type of work/business of every party, if relevant;

A chronology of events, if relevant;

A glossary of technical terms, if relevant;

A list of the important parties and their relation to the dispute;

An outline of the legal issues;

A history of the settlement negotiations between the parties, if any (consider submitting this information in a separate confidential submission);

A candid evaluation of the relative strengths and weaknesses of each party’s case;

A procedural history of the litigation, and any upcoming deadlines, including a trial date;

A fair settlement proposal to which you would be willing to agree (consider submitting this information in a separate confidential submission);

Any non-monetary settlement terms you would like to explore (consider submitting this information in a separate confidential submission); and

Any terms or conditions that the party or parties believe should be included in a settlement agreement.

Second, attorneys sometimes want all mediation briefs to be confidential. There are many times when parties could have saved hours of negotiations during the mediation session had counsel shared their briefs with each other. If the other side has an over-inflated view of their case, sharing that information early will assist in settling the matter and advance your cause.

While it is not recommended to disclose truly confidential information in your brief, sharing your brief is not an accommodation to other side. Retired judge and mediator Alexander H. Williams III is fond of pointing out that a shared brief is an enhancement of your presentation as well as your influence on the mediation. And even if the other side decides not to share its brief, and therefore chooses not to strengthen its presentation, that does not mean you should refuse to strengthen yours.

Third, I will not decide who wins your dispute. I do not “take sides”— I am not a judge, jury, or an advocate. My job is to help each side come to an agreement. You are the one who decides if you are willing to accept any offer made by the other party. I may provide the parties with some food for thought and even play devil’s advocate at times to challenge how each party sees both the dispute as well as the way forward. At times, I may act as an “agent of reality,” telling each party things that they don’t want to hear. I do so that the parties can see things that they may not have considered before, but you will be the one who makes the final decision whether you agree to a settlement. Most parties to mediation at one time or another express unrealistic goals or settlement offers. Rest assured that I will discuss “reality” with both side of the dispute.

Fourth, I will try to help the parties find common ground. As I do so, my goal is to guide the process in a fair fashion. Sometimes that means discussing money being paid from one side to another. Other times that will entail crafting a business relationship going forward that benefits both parties more than litigation does.

Finally, I will often be asked to “carry water” for a party—that is, a party will ask that I deliver a message to the other party. These messages could be positive in nature—a willingness to express a sincere apology, or a more negative approach—if you don’t accept our offer, we intend to file a motion for fees, etc.

What is Your Role?

In litigation, your attorney does most of the heavy lifting, and as a party, you are mostly watching the presentation. Much of that presentation, if not all, focuses on the past. In mediation, your attorney will still be an important advocate for your cause and will certainly be a very important advisor to you, but you play a more central role. I will sometimes speak with your attorney and I will sometimes speak directly to you in order to help find the best way forward. I will have learned about the past from your counsel’s brief and will look forward to understanding its impact on you when we meet. Please be engaged in the process and share with me your feelings both about what occurred as well as what you would like to see for the future. Even though I have been involved in thousands of disputes, I guarantee that I have never had one “just” like yours. Therefore, I need your help to understand your unique situation.

Who May Attend The Mediation?

All parties directly involved in the dispute should attend the mediation. You and your attorney, as well as the other party and their counsel need to appear. Anyone who would be responsible to pay or to approve the amount paid or received should be in attendance or, at a minimum, be available by telephone. If an insurance company will be paying for any settlement, a representative of that insurance company who has full settlement authority should be there in person. If a company is a party to the litigation, an individual with final settlement authority should be present. My preference is that parties not participate via telephone, as it is easier to be dispassionate and disassociated with the process. Anecdotal evidence suggests that having a party appear by telephone increases the chances that the mediation fails to end in a settlement, so I prefer to have all decision makers present for my mediations.

Is Mediation Confidential?

Yes, mediation proceedings are confidential. There are several aspects of mediation confidentiality that are explained in greater detail below, which you should understand: 1) confidential submissions to the mediator; 2) confidentiality of the settlement itself; 3) admissibility of the negotiations should the matter not settle; and 4) the obligation of the mediator keep confidential, the information shared with him or her by a party.

As I indicated above, counsel may submit truly confidential matters to me without sharing it with the other side. I will absolutely hold those in confidence unless you later authorize me to share that information with someone. The settlement reached at a mediation is not necessarily confidential unless the parties make confidentiality a term of the agreement. The parties will have to determine whether they should allow one or both parties to be able to speak openly about the fact that the case settled, or about the amount of the settlement.

Things that happen and information exchanged at mediation cannot be used against a party to that litigation or in other court proceedings so long as the information is not discoverable by other means. This point is so important that it is written into the law. First, an offer to compromise one’s position by way of negotiation “is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.” Nevada Revised Statutes 48.105. Federal Rule of Evidence, Rule 408 provides the same protection for matters in Federal Court. Second, a mediator in Nevada cannot be forced by any court to disclose any matter discussed during mediation proceedings. Nevada Revised Statutes 48.109(3). Finally, in order to encourage parties to be open, honest, and to achieve a mediated resolution, our legislature has declared that “no admission, representation or statement made during the [mediation] session, not otherwise discoverable or obtainable, is admissible as evidence or subject to discovery.” Nevada Revised Statute 48.109(2).

Mediators may not share confidential information you provide to him or her to your opponent. Some mediators will tell you they hold everything you tell them in confidence and only divulge what you specifically tell them is not confidential. Other mediators (me included) feel that sharing of information is so essential to the process that nothing is treated as confidential unless they are specifically instructed that the matter is confidential. I will assume you want me to be able to share information if and when I feel it may assist with settlement unless you tell me it is confidential. There is no right or wrong approach, but you should make sure you understand your mediator’s philosophy before you share sensitive information. Finally, communications between you and your counsel are attorney-client privileged communications protected by law.

What Will Happen At The Mediation?

First, I prefer to have a pre-mediation discussion by telephone with counsel a few days before we meet. I find that these conversations give me a flavor for the dispute that I cannot always get from the written briefs, and help me to jumpstart the actual mediation by getting to know the attorneys and their issues better. Attorneys often choose to use this phone call as an opportunity to deliver an ”opening statement,” laying out their client’s case in a safe environment where they are not likely to enflame emotions as sometimes happens when opening statements are given with litigants present. I appreciated the candid exchange, as well as the advocacy in an environment that is not likely to set negotiations back because someone is offended.

Second, I like to start the day with a short joint session. In the joint session, all participants will be introduced and will sign a confidentiality agreement before proceeding. Next, I will take a moment to introduce myself and my background as a professional neutral, and outline the process of holding separate sessions. I will ask for a commitment to the process of the mediation. You should be prepared to commit to making a good faith effort to settle your differences at mediation.

What Is A Separate Session?

A separate session is sometimes referred to as a caucus or a private session. It is simply a private meeting between a mediator and one party (with that party’s counsel). I place the parties in separate rooms, and far enough apart that they won’t run into each other easily and uncomfortably in the hall, and will not be able to hear one another’s separate session. I then meet separately with each party. These sessions can be as short as a few minutes and as long as necessary to make progress.

The time spent in separate sessions will certainly not be equal between the parties, but you should not read any significance into that fact. Understand that each person processes information, offers, and emotions differently, so a mediator may have to spend more time with one party than another. It does not mean that I am in the other room “drinking the kool-aid” being served by the other side. Rather, think of it as me taking the amount of time I believe is necessary to move that party closer to a resolution. During a separate session, a mediator may simply gather information before even asking either party to make any offer. Thereafter, a mediator may engage in shuttle diplomacy, moving from one room to another, delivering information, exploring options, and making offers and counteroffers.

Can You Speak With Your Attorney Privately Any Time You Want?

Yes! All you have to do, whether in a joint session or separate session, is tell me and I will make arrangements for privacy so that you can speak freely with your counsel.

How Long Will the Mediation Last?

No two mediations are alike, but you should be prepared for a long, sometimes tedious, tiresome, trying, and emotional process. The more complex the problem, the more likely that the mediation will take some time to come to a conclusion. I have spent as little as an hour and as long as 40 hours (over multiple days of course) mediating a single matter. Most business mediations take at least a half a day, but complex matters can go a full day or longer. Bring any item with you that you need to be comfortable. Some people bring a good book or a hobby to work on during down time when the mediator is in a separate session with the other party.

What Helps To Get The Case Settled?

Everything I have covered in this article is designed to assist you in trying to resolve your dispute. The more you prepare, the more likely you are to reach a settlement. Perhaps the most important factor in you being able to settle your case is having a realistic expectation regarding the value of your case and what is means to really compromise. If you think you could get $1,000,000 from a jury on your very best day, do not expect the other side to be willing to pay you that $1,000,000, as they will be looking at how little they could pay you if the jury believes them more than it believes you. If you are an injured party, you may likely feel that no amount of money can really make the past go away. Likewise, if you are defending that case, do not expect to walk away paying the amount you think you would at trial if you did everything right and the jury agreed with all of your analysis and presentation. The sweet spot for settlement is somewhere between those two extremes.

Ultimately, if your case is not settled at mediation, a judge or jury will decide the case value. Jurors are strangers to your case and may have differing beliefs and attitudes toward you. Jurors are often suspicious of people who bring lawsuits and of their attorneys. They also tend to wonder why they shouldn’t get the $1,000,000 that you are seeking and sometimes resent the person asking for money. This is especially true where there are minimal property damages and soft tissue injuries that cannot be verified objectively or where damages in a business matter are caused to a new business and are hard to quantify. On the other hand, juries tends to be unforgiving if they feel a plaintiff has been treated unfairly or if they feel the acts of the defendant are particularly harmful that they need to be punished. Further, some jurors have religious or moral objections to filing a lawsuit and therefore hold some bias. Some jurors, for reasons they may not even understand, will simply like one party more than the other party. You should come prepared to discuss a realist case value in light of all of these risks.

I am a Nevada mediator, arbitrator, and litigator with experience resolving hundreds of disputes through ADR. This Mediation Toolbox is designed to assist those involved in mediation in Nevada or federally to navigate the process. Please feel free to reach out to me if there are resources that should be added to this Toolbox.

NRS 38.259Certain written findings concerning arbitration required; admissibility of such findings at trial anew before jury; instructions to jury.

1. If an action is submitted to arbitration in accordance with the provisions of NRS 38.250 to 38.259, inclusive, the arbitrator or panel of arbitrators shall, in addition to any other written findings of fact or conclusions of law, make written findings in accordance with this subsection concerning each cause of action. The written findings must be in substantially the following form, with “panel of arbitrators” being substituted for “arbitrator” when appropriate:

Based upon the evidence presented at the arbitration hearing concerning the cause of action for ……………., the arbitrator finds in favor of …………….(name of the party) and …………….(“awards damages in the amount of $…………….” or “does not award any damages on that cause of action”).

2. If an action is submitted to arbitration in accordance with the provisions of NRS 38.250 to 38.259, inclusive, and, after arbitration, a party requests a trial anew before a jury:

(a) The written findings made by the arbitrator or the panel of arbitrators pursuant to subsection 1 must be admitted at trial. The testimony of the arbitrator or arbitrators, whenever taken, must not be admitted at trial, and the arbitrator or arbitrators must not be deposed or called to testify concerning the arbitration. Any other evidence concerning the arbitration must not be admitted at trial, unless the admission of such evidence is required by the Constitution of this State or the Constitution of the United States.

(b) The court shall give the following instruction to the jury concerning the action, substituting “panel of arbitrators” for “arbitrator” when appropriate:

During the course of this trial, certain evidence was admitted concerning the findings of an arbitrator. On the cause of action for ……………., the arbitrator found in favor of …………….(name of the party) and …………….(“awarded damages in the amount of $…………….” or “did not award any damages on that cause of action”). The findings of the arbitrator may be given the same weight as other evidence or may be disregarded. However, you must not give those findings undue weight because they were made by an arbitrator, and you must not use the findings of the arbitrator as a substitute for your independent judgment. You must weigh all the evidence that was presented at trial and arrive at a conclusion based upon your own determination of the cause of action.

3. The court shall give a separate instruction pursuant to paragraph (b) of subsection 2 for each such cause of action that is tried before a jury.

NRS 38.258Use of other alternative methods of resolving disputes; adoption of rules by Supreme Court.

1. The Supreme Court may authorize the use of settlement conferences and other alternative methods of resolving disputes, including, without limitation, mediation and a short trial, that are available in the county in which a district court is located:

(a) In lieu of submitting an action to nonbinding arbitration pursuant to NRS 38.250; or

(b) During or following such nonbinding arbitration if the parties agree that the use of any such alternative methods of resolving disputes would assist in the resolution of the dispute.

2. If the Supreme Court authorizes the use of an alternative method of resolving disputes pursuant to subsection 1, the Supreme Court shall adopt rules and procedures to govern the use of any such method.

3. As used in this section, “short trial” has the meaning ascribed to it in NRS 38.250.

1. The rules adopted by the Supreme Court pursuant to NRS 38.253 to provide guidelines for the establishment by a district court of a program must include provisions for a:

(a) Mandatory program for the arbitration of civil actions pursuant to NRS 38.250.

(b) Voluntary program for the arbitration of civil actions if the cause of action arises in the State of Nevada and the amount in issue exceeds $50,000 per plaintiff, exclusive of attorney’s fees, interest and court costs.

(c) Voluntary program for the use of binding arbitration in all civil actions.

2. The rules must provide that the district court of any judicial district whose population is 100,000 or more:

(b) May set fees and charge parties for arbitration if the amount in issue exceeds $50,000 per plaintiff, exclusive of attorney’s fees, interest and court costs.

Ê The rules may provide for similar programs for the other judicial districts.

3. The rules must exclude the following from any program of mandatory arbitration:

(a) Actions in which the amount in issue, excluding attorney’s fees, interest and court costs, is more than $50,000 or less than the maximum jurisdictional amounts specified in NRS 4.370 and 73.010;

(b) Class actions;

(c) Actions in equity;

(d) Actions concerning the title to real estate;

(e) Probate actions;

(f) Appeals from courts of limited jurisdiction;

(g) Actions for declaratory relief;

(h) Actions involving divorce or problems of domestic relations;

(i) Actions brought for relief based on any extraordinary writs;

(j) Actions for the judicial review of an administrative decision;

(k) Actions in which the parties, pursuant to a written agreement executed before the accrual of the cause of action or pursuant to rules adopted by the Supreme Court, have submitted the controversy to arbitration or any other alternative method for resolving a dispute;

(l) Actions that present unusual circumstances that constitute good cause for removal from the program;

(m) Actions in which any of the parties is incarcerated; and

(n) Actions submitted to mediation pursuant to rules adopted by the Supreme Court.

4. The rules must include:

(a) Provisions for the payment of fees to an arbitrator who is appointed to hear a case pursuant to the rules. The rules must provide that an arbitrator must be compensated at a rate of $100 per hour, to a maximum of $1,000 per case, unless otherwise authorized by the arbitration commissioner for good cause shown.

(b) Guidelines for the award of attorney’s fees and maximum limitations on the costs to the parties of the arbitration.

(c) Disincentives to appeal.

(d) Provisions for trial upon the exercise by either party of the party’s right to a trial anew after the arbitration.

(a) All civil actions filed in district court for damages, if the cause of action arises in the State of Nevada and the amount in issue does not exceed $50,000 per plaintiff, exclusive of attorney’s fees, interest and court costs, must be submitted to nonbinding arbitration in accordance with the provisions of NRS 38.250 to 38.259, inclusive, unless the parties have agreed or are otherwise required to submit the action to an alternative method of resolving disputes established by the Supreme Court pursuant to NRS 38.258, including, without limitation, a settlement conference, mediation or a short trial.

(b) A civil action for damages filed in justice court may be submitted to binding arbitration or to an alternative method of resolving disputes, including, without limitation, a settlement conference or mediation, if the parties agree to the submission.

2. An agreement entered into pursuant to this section must be:

(a) Entered into at the time of the dispute and not be a part of any previous agreement between the parties;

(b) In writing; and

(c) Entered into knowingly and voluntarily.

Ê An agreement entered into pursuant to this section that does not comply with the requirements set forth in this subsection is void.

3. As used in this section, “short trial” means a trial that is conducted, with the consent of the parties to the action, in accordance with procedures designed to limit the length of the trial, including, without limitation, restrictions on the amount of discovery requested by each party, the use of a jury composed of not more than eight persons and a specified limit on the amount of time each party may use to present the party’s case.

NRS 38.248Uniformity of application and construction.In applying and construing this Uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

NRS 38.246Venue.A motion pursuant to NRS 38.218 must be made in the court of the county in which the agreement to arbitrate specifies the arbitration hearing is to be held or, if the hearing has been held, in the court of the county in which it was held. Otherwise, the motion may be made in the court of any county in which an adverse party resides or has a place of business or, if no adverse party has a residence or place of business in this State, in the court of any county in this State. All subsequent motions must be made in the court hearing the initial motion unless the court otherwise directs.

1. Upon granting an order confirming, vacating without directing a rehearing, modifying or correcting an award, the court shall enter a judgment in conformity therewith. The judgment may be recorded, docketed and enforced as any other judgment in a civil action.

2. A court may allow reasonable costs of the motion and subsequent judicial proceedings.

3. On application of a prevailing party to a contested judicial proceeding under NRS 38.239, 38.241 or 38.242, the court may add reasonable attorney’s fees and other reasonable expenses of litigation incurred in a judicial proceeding after the award is made to a judgment confirming, vacating without directing a rehearing, modifying or correcting an award.

1. Upon motion made within 90 days after the movant receives notice of the award pursuant to NRS 38.236 or within 90 days after the movant receives notice of a modified or corrected award pursuant to NRS 38.237, the court shall modify or correct the award if:

(a) There was an evident mathematical miscalculation or an evident mistake in the description of a person, thing or property referred to in the award;

(b) The arbitrator has made an award on a claim not submitted to the arbitrator and the award may be corrected without affecting the merits of the decision upon the claims submitted; or

(c) The award is imperfect in a matter of form not affecting the merits of the decision on the claims submitted.

2. If a motion made under subsection 1 is granted, the court shall modify or correct and confirm the award as modified or corrected. Otherwise, unless a motion to vacate is pending, the court shall confirm the award.

3. A motion to modify or correct an award pursuant to this section may be joined with a motion to vacate the award.

1. Upon motion to the court by a party to an arbitral proceeding, the court shall vacate an award made in the arbitral proceeding if:

(a) The award was procured by corruption, fraud or other undue means;

(b) There was:

(1) Evident partiality by an arbitrator appointed as a neutral arbitrator;

(2) Corruption by an arbitrator; or

(3) Misconduct by an arbitrator prejudicing the rights of a party to the arbitral proceeding;

(c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to consider evidence material to the controversy, or otherwise conducted the hearing contrary to NRS 38.231, so as to prejudice substantially the rights of a party to the arbitral proceeding;

(d) An arbitrator exceeded his or her powers;

(e) There was no agreement to arbitrate, unless the movant participated in the arbitral proceeding without raising the objection under subsection 3 of NRS 38.231 not later than the beginning of the arbitral hearing; or

(f) The arbitration was conducted without proper notice of the initiation of an arbitration as required in NRS 38.223 so as to prejudice substantially the rights of a party to the arbitral proceeding.

2. A motion under this section must be made within 90 days after the movant receives notice of the award pursuant to NRS 38.236 or within 90 days after the movant receives notice of a modified or corrected award pursuant to NRS 38.237, unless the movant alleges that the award was procured by evident partiality, corruption, fraud or other undue means, in which case the motion must be made within 90 days after the ground is known or by the exercise of reasonable care would have been known by the movant.

3. If the court vacates an award on a ground other than that set forth in paragraph (e) of subsection 1, it may order a rehearing. If the award is vacated on a ground stated in paragraph (a) or (b) of subsection 1, the rehearing must be before a new arbitrator. If the award is vacated on a ground stated in paragraph (c), (d) or (f) of subsection 1, the rehearing may be before the arbitrator who made the award or the arbitrator’s successor. The arbitrator must render the decision in the rehearing within the same time as that provided in subsection 2 of NRS 38.236 for an award.

4. If the court denies a motion to vacate an award, it shall confirm the award unless a motion to modify or correct the award is pending.

NRS 38.239Confirmation of award.After a party to an arbitral proceeding receives notice of an award, the party may make a motion to the court for an order confirming the award at which time the court shall issue a confirming order unless the award is modified or corrected pursuant to NRS 38.237 or 38.242 or is vacated pursuant to NRS 38.241.

1. An arbitrator may award reasonable attorney’s fees and other reasonable expenses of arbitration if such an award is authorized by law in a civil action involving the same claim or by the agreement of the parties to the arbitral proceeding.

2. As to all remedies other than those authorized by subsection 1, an arbitrator may order such remedies as the arbitrator considers just and appropriate under the circumstances of the arbitral proceeding. The fact that such a remedy could not or would not be granted by the court is not a ground for refusing to confirm an award under NRS 38.239 or for vacating an award under NRS 38.241.

3. An arbitrator’s expenses and fees, together with other expenses, must be paid as provided in the award.

1. An arbitrator shall make a record of an award. The record must be signed or otherwise authenticated by an arbitrator who concurs with the award. The arbitrator or the arbitral organization shall give notice of the award, including a copy of the award, to each party to the arbitral proceeding.

2. An award must be made within the time specified by the agreement to arbitrate or, if not specified therein, within the time ordered by the court. The court may extend or the parties to the arbitral proceeding may agree in a record to extend the time. The court or the parties may do so within or after the time specified or ordered. A party waives any objection that an award was not timely made unless the party gives notice of the objection to the arbitrator before receiving notice of the award.

NRS 38.234Judicial enforcement of preaward ruling by arbitrator.If an arbitrator makes a preaward ruling in favor of a party to an arbitral proceeding, the party may request the arbitrator to incorporate the ruling into an award under NRS 38.236. A prevailing party may make a motion to the court for an expedited order to confirm the award under NRS 38.239, in which case the court shall summarily decide the motion. The court shall issue an order to confirm the award unless the court vacates, modifies or corrects the award under NRS 38.241 or 38.242.

1. An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena must be served in the manner for service of subpoenas in a civil action and, upon motion to the court by a party to the arbitral proceeding or the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.

2. To make the proceedings fair, expeditious and cost effective, upon request of a party to or a witness in an arbitral proceeding, an arbitrator may permit a deposition of any witness to be taken for use as evidence at the hearing, including a witness who cannot be subpoenaed for or is unable to attend a hearing. The arbitrator shall determine the conditions under which the deposition is taken.

3. An arbitrator may permit such discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitral proceeding and other affected persons and the desirability of making the proceeding fair, expeditious and cost effective.

4. If an arbitrator permits discovery under subsection 3, the arbitrator may order a party to the arbitral proceeding to comply with the arbitrator’s orders related to discovery, issue subpoenas for the attendance of a witness and for the production of records and other evidence at a proceeding for discovery, and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this State.

5. An arbitrator may issue a protective order to prevent the disclosure of privileged information, confidential information, trade secrets and other information protected from disclosure to the extent a court could if the controversy were the subject of a civil action in this State.

6. All laws compelling a person under subpoena to testify and all fees for attending a judicial proceeding, a deposition or a proceeding for discovery as a witness apply to an arbitral proceeding as if the controversy were the subject of a civil action in this State.

7. The court may enforce a subpoena or order related to discovery for the attendance of a witness within this State and for the production of records and other evidence issued by an arbitrator in connection with an arbitral proceeding in another state upon conditions determined by the court so as to make the arbitral proceeding fair, expeditious and cost effective. A subpoena or order related to discovery issued by an arbitrator in another state must be served in the manner provided by rule of court for service of subpoenas in a civil action in this State and, upon motion to the court by a party to the arbitral proceeding or the arbitrator, enforced in the manner provided by rule of court for enforcement of subpoenas in a civil action in this State.

1. An arbitrator may conduct an arbitration in such manner as the arbitrator considers appropriate for a fair and expeditious disposition of the proceeding. The authority conferred upon the arbitrator includes the power to hold conferences with the parties to the arbitral proceeding before the hearing and, among other matters, determine the admissibility, relevance, materiality and weight of any evidence.

2. An arbitrator may decide a request for summary disposition of a claim or particular issue:

(a) If all interested parties agree; or

(b) Upon request of one party to the arbitral proceeding if that party gives notice to all other parties to the proceeding, and the other parties have a reasonable opportunity to respond.

3. If an arbitrator orders a hearing, the arbitrator shall set a time and place and give notice of the hearing not less than 5 days before the hearing begins. Unless a party to the arbitral proceeding makes an objection to lack or insufficiency of notice not later than the beginning of the hearing, the party’s appearance at the hearing waives the objection. Upon request of a party to the arbitral proceeding and for good cause shown, or upon the arbitrator’s own initiative, the arbitrator may adjourn the hearing from time to time as necessary but may not postpone the hearing to a time later than that fixed by the agreement to arbitrate for making the award unless the parties to the arbitral proceeding consent to a later date. The arbitrator may hear and decide the controversy upon the evidence produced although a party who was duly notified of the arbitral proceeding did not appear. The court, on request, may direct the arbitrator to conduct the hearing promptly and render a timely decision.

4. At a hearing held under subsection 3, a party to the arbitral proceeding has a right to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.

5. If an arbitrator ceases or is unable to act during an arbitral proceeding, a replacement arbitrator must be appointed in accordance with NRS 38.226 to continue the proceeding and to resolve the controversy.

1. An arbitrator or an arbitral organization acting in that capacity is immune from civil liability to the same extent as a judge of a court of this State acting in a judicial capacity.

2. The immunity afforded by this section supplements any immunity under other law.

3. The failure of an arbitrator to make a disclosure required by NRS 38.227 does not cause any loss of immunity under this section.

4. In a judicial, administrative or similar proceeding, an arbitrator or representative of an arbitral organization is not competent to testify, and may not be required to produce records as to any statement, conduct, decision or ruling occurring during the arbitral proceeding, to the same extent as a judge of a court of this State acting in a judicial capacity. This subsection does not apply:

(a) To the extent necessary to determine the claim of an arbitrator, arbitral organization or representative of the arbitral organization against a party to the arbitral proceeding; or

(b) To a hearing on a motion to vacate an award under paragraph (a) or (b) of subsection 1 of NRS 38.241 if the movant establishes prima facie that a ground for vacating the award exists.

5. If a person commences a civil action against an arbitrator, arbitral organization or representative of an arbitral organization arising from the services of the arbitrator, organization or representative or if a person seeks to compel an arbitrator or a representative of an arbitral organization to testify or produce records in violation of subsection 4, and the court decides that the arbitrator, arbitral organization or representative is immune from civil liability or that the arbitrator or representative is not competent to testify, the court shall award to the arbitrator, organization or representative reasonable attorney’s fees and other reasonable expenses of litigation.

NRS 38.228Action by majority.If there are two or more arbitrators, the powers of an arbitrator must be exercised by a majority of the arbitrators, but all of them shall conduct the hearing under subsection 3 of NRS 38.231.

NRS 38.227Disclosure of known facts likely to affect impartiality of arbitrator; objection of party based on disclosure; effect of failure to make required disclosure.

1. Before accepting appointment, an individual who is requested to serve as an arbitrator, after making a reasonable inquiry, shall disclose to all parties to the agreement to arbitrate and arbitral proceeding and to any other arbitrators any known facts that a reasonable person would consider likely to affect the impartiality of the arbitrator in the proceeding, including:

(a) A financial or personal interest in the outcome of the arbitral proceeding; and

(b) An existing or past relationship with any of the parties to the agreement to arbitrate or the arbitral proceeding, their counsel or representatives, a witness or another arbitrator.

2. An arbitrator has a continuing obligation to disclose to all parties to the agreement to arbitrate and arbitral proceeding and to any other arbitrators any facts that the arbitrator learns after accepting appointment which a reasonable person would consider likely to affect the impartiality of the arbitrator.

3. If an arbitrator discloses a fact required by subsection 1 or 2 to be disclosed and a party timely objects to the appointment or continued service of the arbitrator based upon the fact disclosed, the objection may be a ground under paragraph (b) of subsection 1 of NRS 38.241 for vacating an award made by the arbitrator.

4. Except as otherwise provided in this subsection, if the arbitrator did not disclose a fact as required by subsection 1 or 2, upon timely objection by a party and a determination by the court under paragraph (b) of subsection 1 of NRS 38.241 that the nondisclosed fact is one that a reasonable person would consider likely to affect the impartiality of the arbitrator in the arbitral proceeding, the court shall:

(a) Vacate an award made before the objecting party discovered such fact; or

(b) If an award has not been made before discovery of such fact, remove the arbitrator from the arbitral proceeding.

Ê This subsection does not apply to an arbitral proceeding conducted or administered by a self-regulatory organization, as defined by the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(26), the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq., and any regulations adopted pursuant thereto.

5. An arbitrator appointed as a neutral arbitrator who does not disclose a known, direct and material interest in the outcome of the arbitral proceeding or a known, existing and substantial relationship with a party is presumed to act with evident partiality for the purposes of paragraph (b) of subsection 1 of NRS 38.241.

6. If the parties to an arbitral proceeding expressly agree to the procedures of an arbitral organization or any other procedures for challenges to arbitrators before an award is made, substantial compliance with those procedures is a condition precedent to a motion to vacate an award on that ground under paragraph (b) of subsection 1 of NRS 38.241.

1. If the parties to an agreement to arbitrate agree on a method for appointing an arbitrator, that method must be followed, unless the method fails. If the parties have not agreed on a method, the agreed method fails, or an arbitrator appointed fails or is unable to act and a successor has not been appointed, the court, on motion of a party to the arbitral proceeding, shall appoint the arbitrator. An arbitrator so appointed has all the powers of an arbitrator designated in the agreement to arbitrate or appointed pursuant to the agreed method.

2. An individual who has a known, direct and material interest in the outcome of the arbitral proceeding or a known, existing and substantial relationship with a party may not serve as an arbitrator required by an agreement to be neutral.

1. Except as otherwise provided in subsection 3, upon motion of a party to an agreement to arbitrate or to an arbitral proceeding, the court may order consolidation of separate arbitral proceedings as to all or some of the claims if:

(a) There are separate agreements to arbitrate or separate arbitral proceedings between the same persons or one of them is a party to a separate agreement to arbitrate or a separate arbitral proceeding with a third person;

(b) The claims subject to the agreements to arbitrate arise in substantial part from the same transaction or series of related transactions;

(c) The existence of a common issue of law or fact creates the possibility of conflicting decisions in the separate arbitral proceedings; and

(d) Prejudice resulting from a failure to consolidate is not outweighed by the risk of undue delay or prejudice to the rights of or hardship to parties opposing consolidation.

2. The court may order consolidation of separate arbitral proceedings as to some claims and allow other claims to be resolved in separate arbitral proceedings.

3. The court may not order consolidation of the claims of a party to an agreement to arbitrate if the agreement prohibits consolidation.

4. Except as otherwise provided in this subsection, an arbitrator may not consolidate separate arbitral proceedings or other claims unless all parties expressly agree to the consolidation. This subsection does not apply to an arbitral proceeding conducted or administered by a self-regulatory organization, as defined by the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(26), the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq., and any regulations adopted pursuant thereto.

1. A person initiates an arbitral proceeding by giving notice in a record to the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe the nature of the controversy and the remedy sought.

2. Unless a person objects for lack or insufficiency of notice under subsection 3 of NRS 38.231 not later than the beginning of the arbitration hearing, by appearing at the hearing the person waives any objection to lack of or insufficiency of notice.

1. Before an arbitrator is appointed and is authorized and able to act, the court, upon motion of a party to an arbitral proceeding and for good cause shown, may enter an order for provisional remedies to protect the effectiveness of the arbitral proceeding to the same extent and under the same conditions as if the controversy were the subject of a civil action.

2. After an arbitrator is appointed and is authorized and able to act:

(a) The arbitrator may issue such orders for provisional remedies, including interim awards, as the arbitrator finds necessary to protect the effectiveness of the arbitral proceeding and to promote the fair and expeditious resolution of the controversy, to the same extent and under the same conditions as if the controversy were the subject of a civil action; and

(b) A party to an arbitral proceeding may move the court for a provisional remedy only if the matter is urgent and the arbitrator is not able to act timely or the arbitrator cannot provide an adequate remedy.

3. A party does not waive a right of arbitration by making a motion under subsection 1 or 2.

1. On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:

(a) If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and

(b) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

2. On motion of a person alleging that an arbitral proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

3. If the court finds that there is no enforceable agreement, it may not, pursuant to subsection 1 or 2, order the parties to arbitrate.

4. The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

5. If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be made in that court. Otherwise, a motion under this section may be made in any court as provided in NRS 38.246.

6. If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

7. If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

1. An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except as otherwise provided in NRS 597.995 or upon a ground that exists at law or in equity for the revocation of a contract.

2. The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

3. An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

4. If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitral proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

NRS 38.218Application for judicial relief; service of notice of initial motion.

1. Except as otherwise provided in NRS 38.247, an application for judicial relief under NRS 38.206 to 38.248, inclusive, must be made by motion to the court and heard in the manner provided by rule of court for making and hearing motions.

2. Unless a civil action involving the agreement to arbitrate is pending, notice of an initial motion to the court under NRS 38.206 to 38.248, inclusive, must be served in the manner provided by rule of court for the service of a summons in a civil action. Otherwise, notice of the motion must be given in the manner provided by rule of court for serving motions in pending cases.